Contract Terms II
Codes
Code of Practice on Voluntary Dispute Resolution (Enhanced Code)
Code of Practice on Addressing Bullying in the Workplace
1. INTRODUCTION
Section 42 of the Industrial Relations Act 1990 provides, inter alia, for the preparation of draft Codes of Practice by the Labour Relations Commission for submission to the Minister and for the making by the Minister of an order declaring that the code received under Section 42 and scheduled to the order shall be a Code of Practice for the purposes of the said Act.
In September 1999, the Minister for Labour Affairs, Mr Tom Kitt T.D. established the Task Force on the Prevention of Workplace Bullying. In March 2001 the Task Force issued its report entitled Dignity at Work the Challenge of Workplace Bullying . In line with a recommendation of the report the Labour Relations Commission has prepared this code of Practice on Workplace Bullying.
In accordance with the provisions of the legislation, when preparing this Code of Practice the Commission consulted with representative organisations including the Irish Congress of Trade Unions, the Irish Business and Employers Confederation, Equality Authority, Employment Appeals Tribunal, Labour Court, Health and Safety Authority and a number of Government Departments. The Commission has taken account of the views expressed by these organisations to the maximum extent possible. The Commission has also consulted with the Implementation Advisory Committee on the Prevention of Workplace Bullying.
Other relevant Codes of Practice have been made under the Safety, Health and Welfare at Work Act 1989 (Code of Practice on the Prevention of Bullying) and under the Employment Equality Act 1998 (Code of Practice on Sexual Harassment and Harassment at Work).
2. DEFINITION
For the purpose of this Code of Practice the definition of workplace bullying is as follows:
“Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.” (Recommended by the Report by the Task Force on the Prevention of Workplace Bullying published by the Stationery Office, March 2001)
General Provisions
The main purpose of this Code of Practice is to set out, for the guidance of employers, employees and their representatives, effective procedures for addressing allegations of workplace bullying. The Code sets out both an informal and formal procedure.
3. PROCEDURES
Informal Procedure
While in no way diminishing the issue or the effects on individuals, an informal approach can often resolve matters. As a general rule therefore, an attempt should be made to address an allegation of bullying as informally as possible by means of an agreed informal procedure. The objective of this approach is to resolve the difficulty with the minimum of conflict and stress for the individuals involved.
a) Any employee who believes he or she is being bullied should explain clearly to the alleged perpetrator(s) that the behaviour in question is unacceptable. In circumstances where the complainant finds it difficult to approach the alleged perpetrator(s) directly, he or she should seek help and advice, on a strictly confidential basis, from a contact person. A contact person could, for example, be one of the following:
a work colleague
a supervisor or line manager
any manager in the workplace
human resource/personnel officer
employee/trade union representative.
In this situation the contact person should listen patiently, be supportive and discuss the various options open to the employee concerned.
b) Having consulted with the contact person, the complainant may request the assistance of the contact person in raising the issue with the alleged perpetrator(s). In this situation the approach of the contact person should be by way of a confidential, non-confrontational discussion with a view to resolving the issue in an informal low-key manner.
c) A complainant may decide, for whatever reason, to bypass the informal procedure. Choosing not to use the informal procedure should not reflect negatively on a complainant in the formal procedure.
Formal Procedure
If an informal approach is inappropriate or if after the informal stage, the bullying persists, the following formal procedures should be invoked:
a) The complainant should make a formal complaint in writing to his/her immediate supervisor, or if preferred, any member of management. The complaint should be confined to precise details of actual incidents of bullying.
b) The alleged perpetrator(s) should be notified in writing that an allegation of bullying has been made against them. They should be given a copy of the complainant ‘s statement and advised that they shall be afforded a fair opportunity to respond to the allegation(s).
c) The complaint should be subject to an initial examination by a designated member of management, who can be considered impartial, with a view to determining an appropriate course of action.
An appropriate course of action at this stage, for example, could be exploring a mediated solution or a view that the issue can be resolved informally. Should either of these approaches be deemed inappropriate or inconclusive, a formal investigation of the complaint should take place with a view to determining the facts and the credibility or otherwise of the allegation(s).
Investigation
d) The investigation should be conducted by either a designated member or members of management or, if deemed appropriate, an agreed third party. The investigation should be conducted thoroughly, objectively, with sensitivity, utmost confidentiality, and with due respect for the rights of both the complainant and the alleged perpetrator(s).
e) The investigation should be governed by terms of reference, preferably agreed between the parties in advance.
f) The investigator(s) should meet with the complainant and alleged perpetrator(s) and any witnesses or relevant persons on an individual confidential basis with a view to establishing the facts surrounding the allegation(s). Both the complainant and alleged perpetrator(s) may be accompanied by a work colleague or employee/trade union representative if so desired.
g) Every effort should be made to carry out and complete the investigation as quickly as possible and preferably within an agreed timeframe. On completion of the investigation, the investigator(s) should submit a written report to management containing the findings of the investigation.
h) Both parties should be given the opportunity to comment on the findings before any action is decided upon by management.
i) The complainant and the alleged perpetrator(s) should be informed in writing of the findings of the investigation.
Outcome
j) Should management decide that the complaint is well founded, the alleged perpetrator(s) should be given a formal interview to determine an appropriate course of action. Such action could, for example, involve counselling and/or monitoring or progressing the issue through the disciplinary and grievance procedure of the employment.
k) If either party is unhappy with the outcome of the investigation, the issue may be processed through the normal industrial relations mechanisms.
See the Labour Relations Commission’s Codes of Practice on
Grievance and Disciplinary Procedures, and
Voluntary Dispute Resolution.
4. Confidentiality:
All individuals involved in the procedures referred to above should maintain absolute confidentiality on the subject.
5. Training/Awareness:
It is considered that all personnel who have a role in either the informal or formal procedure – e.g. designated members of management, worker representatives, union representatives, etc. should be made aware of appropriate policies and procedures which should, if possible, include appropriate training.
Code of Practice on Protected Disclosures Act 2014
Introduction
Section 42 of the Industrial Relations Act 1990 provides for the preparation of draft codes of practice by the Workplace Relations Commission for submission to the Minister for Jobs, Enterprise and Innovation. Codes of Practice are written guidelines, agreed in a consultative process, setting out guidance and best practice in regard to industrial relations practice and compliance.
The Commission has been requested by the Minister to prepare a Code of Practice on foot of the enactment of the Protected Disclosures Act 2014 both in order to assist in the practical implementation of the Act and give guidance on best principles to organisations and their workers.
Purpose
3. This Code is designed to:
help employers, workers and their representatives understand the law in regard to the disclosure of information relating to wrongdoing which comes to the attention of workers in the workplace;
give guidance and set out best practice in regard to how to deal with the disclosure of such information in the workplace.
4. This Code underpins the principle that:
the disclosure of information relating to wrongdoing in the workplace is best dealt with in the first instance at workplace level. However there may be circumstances where this may not be appropriate;
it is in the interests of employers, workers and their representatives to have in place clear and agreed procedures providing for “whistleblowing” in the workplace.
A sample policy is set out in the Appendix to the Code.
5. In preparing this Code of Practice, the Workplace Relations Commission consulted with Ibec, ICTU and relevant Government Departments.
Protected Disclosures Act 2014
The Protected Disclosures Act 2014 was enacted on 15 July 2014. The purpose of the Act is to provide a statutory framework within which workers can raise concerns and disclose information regarding potential wrongdoing that has come to their attention in the course of their work in the knowledge that they can avail of significant employment and other protections if they are penalised by their employer or suffer any detriment for doing so. It is important to note that in order to enjoy the protections of the Act, disclosures must be made in accordance with the provisions set out in the Act.
The Act provides for a stepped disclosure process with the objective that disclosure should be, wherever possible, made at workplace level to the most appropriate person.
General
What is Whistleblowing in the Workplace?
Whistleblowing is the term used when a worker raises a concern about a relevant wrongdoing such as possible fraud, crime, danger or failure to comply with any legal obligation which came to the worker’s attention in connection with the worker’s employment. Relevant wrong doings are broadly defined in the Act and include the following:
Commission of an offence — has happened, is happening, or is likely to happen;
Failure to comply with any legal obligation (other than one arising under the worker’s contract of employment);
Miscarriage of justice;
Health and safety of any individual;
Misuse of public money;
Gross mismanagement by public body;
Damage to the environment;
Destruction or concealment of information relating to any of the above.
It is important to note that a matter is not regarded as a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.
What is meant by a protected disclosure?
The Act provides that if a disclosure is made by a worker in line with the channels set out in the legislation, a worker is protected from penalisation by the employer. Penalisation is defined in the Act and includes for example:
Suspension/Layoff/Dismissal;
Demotion;
Transfer of duties, change of location, change in working hours, reduction in wages;
Imposition of reprimand, discipline or other penalty;
Unfair treatment;
Discrimination;
Harassment, threat of reprisal.
It should be noted that there are several pieces of legislation, particularly in the financial and medical sectors, where reporting of certain matters is mandatory. The Act protects voluntary reporting and does not absolve any worker from a pre-existing mandatory reporting obligation. Likewise where additional protections apply these also remain in force.
Does motivation matter?
The motivation for making a disclosure is irrelevant as to whether or not it is a protected disclosure. What is required is that a worker has a reasonable belief as to wrongdoing and that this wrongdoing has come to the worker’s attention in connection with his/her employment.
It is important to note that in situations where a worker makes a disclosure not in compliance with the Act, the protections under the Act will not be available to the worker. It is also important to note that deliberate false disclosure will not be protected and that a worker could leave him or herself open to disciplinary action in that regard.
Who is Covered?
14. The Act protects workers in all sectors of employment, both public and private, including:
Employees;
Civil and Public Servants;
Members of an Garda Síochána and the Defence Forces;
Contractors and Consultants;
Agency Workers;
Trainees, temporary workers, interns, and those on work experience.
How are protected disclosures made?
Whether a disclosure is protected or not will depend on the way in which the disclosure is made. The Act provides for a number of channels for those who wish to make a protected disclosure.
Channels of Disclosure
The Act sets out a number of distinct disclosure channels for potential whistle blowers. It provides for a tiered or “stepped” disclosure regime with a number of avenues open to workers, internal and external to the workplace. The first tier in the disclosure regime is internal, namely disclosure to the employer or some other responsible person. However there may be circumstances where this may not always be appropriate. The channels are as follows:
Disclosure to an Employer
It is in the best interests of all concerned in the workplace — management, workers and their representatives — that disclosures about wrongdoing are managed internally.
The Act provides for direct disclosure to the employer and this Code recognises the strong value to this route. A worker may make a protected disclosure to his/her employer where he/she reasonably believes that information being disclosed shows or tends to show wrongdoing.
It is recommended, therefore, that all organisations should have an agreed whistleblowing policy in place to ensure that:
Workers are assured of a safe and confidential avenue to make their disclosures;
Employers are given the opportunity to address issues arising at the earliest possible opportunity or where the discloser is mistaken or unaware of all the facts surrounding the issues raised, and to take the opportunity to assure the worker that his/her concerns are unfounded;
There is a clearly understood procedure governing the protected disclosure of information.
An effective policy helps workers understand how to make a disclosure and can make it easier for employers to find out when something goes wrong. It also makes it more likely that persons making disclosures will make disclosures “in house” and look to internal resolutions. The risk of not having a policy is that a worker will not feel protected and will be inclined to go an external route.
Disclosure to a Minister
A worker employed in a public body may make a protected disclosure to a Minister of the Government on whom any function relating to the public body is conferred rather than to their immediate employer. The evidential criteria for making a disclosure to the appropriate Minister is the same as that which applies to a disclosure made internally to an employer i.e. the worker reasonably believes that the information being disclosed shows or tends to show wrongdoing.
Other Channels — Disclosure outside of the Workplace
While this Code places a strong emphasis on the value of addressing whistleblowing concerns within the workplace, there is no obligation on a worker to disclose to the employer in the first instance. There may be circumstances where it is appropriate for a worker to make a disclosure externally. These circumstances include the employer failing to act on the information being disclosed or the worker does not wish to avail of the internal channel route. This is provided for in the Act.
It should be noted that the evidential criteria for making an external disclosure is set at a higher level than that applying to internal disclosure. Disclosure to a prescribed person (e.g. Regulatory Bodies) will only be protected when the person making the disclosure believes that the information disclosed, and any allegation contained in it, is substantially true.
The Act sets out a number of external channels:
Prescribed Persons
The Act provides for the Minister to prescribe a list of “prescribed persons” (in effect Regulatory Bodies that have regulatory inspection and enforcement functions in their sector) whose roles and responsibilities are such as to be deemed appropriate to receive and investigate matters arising from disclosures relating to any of the wrongdoings in relation to which a disclosure may be made. Examples of such Bodies are the Central Bank, The Health and Safety Authority and the WRC. A full list of relevant Statutory Bodies has been prescribed in Statutory Instrument No. 339 of 21st July 2014.
Legal Advisor
A disclosure made in the course of obtaining legal advice, including advice relating to the operation of the Act, from a barrister, solicitor or trade union official is protected.
Other Persons
There is also provision for disclosure in other circumstances i.e. disclosure potentially in the public domain, such as to the media. The evidential qualifying criteria are set at a higher level. In order for such a disclosure to be protected a worker must:
Reasonably believe that the information disclosed and any allegation is substantially true;
The disclosure is not made for personal gain;
The making of the disclosure in public is in all the circumstances, reasonable.
In addition one or more of the following conditions must be met:
At the time of making the disclosure the worker reasonably believes that he/she will be subjected to penalisation by the employer if they make the disclosure under the internal process or to a “Prescribed Person”;
In a case where there is no appropriate prescribed person (Regulatory Body) in regard to the wrongdoing, the worker reasonably believes that evidence will be destroyed or concealed if the disclosure is made directly to the employer;
No action was taken in regard to a previous disclosure of the same nature made by the worker;
The relevant wrongdoing is of an exceptionally serious nature.
Support and Advice
When a worker seeks advice from a trade union, barrister or solicitor about the operation of the legislation, this discussion is also a “protected disclosure”. It is sufficient to be protected that the purpose of the discussion was that the worker was seeking advice about the operation of the legislation. Advice on the operation of the Act can be sought at any stage including in advance of making a protected disclosure and during the subsequent process in both internal and external channels.
What is the difference between a grievance and a protected disclosure?
A grievance is a matter specific to the worker i.e. that worker’s employment position around his/her duties, terms and conditions of employment, working procedures or working conditions. A grievance should be processed under the organisation’s Grievance Procedure.
A protected disclosure is where a worker has information about a relevant wrongdoing.
It is important that a worker understands the distinction between a protected disclosure and a grievance. The organisation’s Whistleblowing Policy (see below) should make this distinction clear.
Examples of a grievance
Complaint around selection criteria for a promotional post;
Complaint around allocation of overtime.
Example of a whistleblowing disclosure
In a hazardous work situation information regarding a failure to provide or wear protective clothing and adhere to health and safety guidelines;
Information about the improper use of funds, bribery and fraud.
Confidentiality
All reasonable steps must be taken to protect the identity of the person making the disclosure and to ensure the disclosures are treated in confidence. The exceptions to this are (a) where the worker making the disclosure has made it clear that he/she has no objection to his/her identity being disclosed and (b) the identity of the person making the disclosure is critical to an investigation of the matter raised. An example of this might be where the worker making the disclosure is called as a witness in the context of an investigation.
Can a disclosure be made anonymously?
Yes, a disclosure may be made anonymously. It should be noted that a disclosure made anonymously may potentially, of itself, present a barrier to the effective internal investigation of the matter reported on.
Focus should be on the reported wrongdoing and not on the person making the disclosure.
Can a disclosure made before the commencement of the Act be protected?
Yes, a disclosure made before the Act coming into force (14 July 2014) may still be a protected disclosure provided that penalisation or negative consequences for making the disclosure are suffered by the worker subsequent to the enactment of the Act.
What about disclosure in regard to wrongdoings occurring outside the State?
A disclosure made outside the State may qualify for protection. It is immaterial whether a relevant wrongdoing occurred or occurs in the State or elsewhere.
Workplace Whistleblowing Policy
It is mandatory for all public bodies, and highly recommended for all employments, to have in place an agreed Whistleblowing Policy setting out an accessible procedure for making protected disclosures and underpinning a culture of encouraging workers to speak out if they have genuine concerns.
As best practice, a policy should be developed and put in place on foot of agreement with all stakeholders in the organisation i.e. management, workers and their representatives. In general terms it should be simple and easy to understand, and set out a clear “roadmap” for dealing with protected disclosures.
While this Code of Practice does not propose to be prescriptive in regard to what a policy should look like as this is a matter for the stakeholders, the following elements are given as guidance in regard to matters which should be addressed in a policy:
Overview
The policy should make clear that the organisation is committed to a culture which encourages workers to make disclosures internally in a responsible and effective manner when they discover information which they believe shows wrongdoing. Essentially the policy should underpin that the organisational culture is such that workers will feel comfortable and confident about reporting wrongdoing;
The policy should make clear that the organisation will not tolerate the penalisation of a worker who discloses information in line with the policy;
The policy should make clear that the organisation is committed to addressing concerns raised in an effective and timely manner.
Scope of the Policy
The policy should specify to whom it applies. The Act defines workers to include employees, Civil and Public Servants, Members of An Garda Síochána and the Defence Forces, Contractors and Consultants, Agency Workers, Trainees, temporary workers, interns and those on work experience.
Types of concerns that can be raised as a protected disclosure
The policy should give guidance on the types of wrongdoing that may be reported e.g. financial irregularity, or suspected criminal offences.
Concerns that may not form the basis for a protected disclosure
Matters for which appropriate procedures exist, for example, Grievance Procedures in regard to a worker’s or employee’s own contract of employment.
It is important that the distinction between procedures governing whistleblowing and other procedures, such as a Grievance Procedure, is made clear in the policy.
Raising a disclosure
44. Factors to be considered in prescribing a reporting structure for a protected disclosure include:
To whom a disclosure should be made e.g. to an immediate manager in the first instance but with a clear option of bypassing the line management structure or disclosing to a higher level if appropriate. In larger organisations, consideration should be given to nominating a designated officer or officers, appropriately authorised, to act as a complaint recipient.
The size of the organisation: Arrangements for a large organisation will differ from those of a small organisation.
A concern can be raised verbally or in writing. Workers can be allowed to disclose verbally in the first instance, to be followed with a written communication if necessary. In the case of verbal disclosures, it is recommended that a written record is kept of the disclosure with due regard to confidentiality obligations.
Responses to Protected Disclosures
In the case of a concern expressed verbally, the person to whom the disclosure is expressed should listen carefully and give full attention to the person. In the case of a written disclosure, the matter should be acknowledged as quickly as possible.
The first matter that needs attention is assessing whether or not the concern raised should be treated as a protected disclosure or is more appropriate to another procedure, for example, Grievance or Dignity in the Workplace procedure. In the event that the employer does not consider the matter to be a protected disclosure, the Act provides for alternative channels of disclosure.
Where the matter is being treated as a protected disclosure, further communication with the discloser may be appropriate to clarify or seek further information. It may be possible that the matter can be addressed to the satisfaction of the discloser at this point on foot of a discussion and clarification.
A further examination or an investigation may be appropriate. Any examination or investigation should be conducted using objective and fair principles with regard to the principles of natural justice. It is important that the outcome or conclusion of any such examination or investigation is communicated to the worker making the disclosure. In certain circumstances, a referral to the appropriate external enforcement agency or An Garda Síochána may be appropriate.
Communication/Feedback
It is important that the worker making the disclosure has a sense that the complaint is being taken seriously and that action is being taken, not least with a view to ensuring that the concerns raised are dealt with internally. The organisation should ensure that as much feedback as possible is given having regard to sensitivities around, for example, confidentiality. Information in regard to timelines for responses/actions should be communicated to the discloser.
Confidentiality
It is important that a worker making a disclosure should be assured that every effort will be made to maintain confidentiality. It is advisable to point out that there may be circumstances where confidentiality cannot be maintained, for example in the context of an investigation. It is important to note however that all reasonable steps must be taken to maintain confidentiality.
Representation/Supports
When a worker seeks advice from a trade union official, solicitor or barrister, this discussion is treated as a protected disclosure including at early stages in contemplation of making a protected disclosure or seeking information on the operation of the legislation. The trade union official, solicitor or barrister is bound by a general duty of confidentiality. In regard to confidentiality, it is important that there should be an awareness of respecting sensitive company information, which, while unrelated to the disclosure, may be disclosed in the course of a consultation or investigation process.
Any worker making a protected disclosure or any worker against whom an allegation has been made must have their constitutional right to natural justice and fair procedures upheld in accordance with all relevant employment legislation. In this regard, appropriate representation, if requested, should be accommodated.
Internal Redress
The organisation should make it clear that any penalisation of a worker making a protected disclosure will not be tolerated and that the organisation’s disciplinary procedure will be invoked against any worker or manager who engages in penalisation or threatened penalisation of a worker making a disclosure.
Alternative Channel for Public Servants
The policy should recognise that where a worker is employed by a public body, there may be circumstances where a concern can be disclosed to the appropriate Minister.
External Disclosure
The policy should recognise that, while the organisation is committed to addressing concerns in house to the greatest extent possible, there may be circumstances where a concern can be disclosed externally to a Prescribed Person or a person other than a Prescribed Person.
The policy should give guidance on accessing the relevant external channels.
The worker making the disclosure should ensure that the disclosure is limited to information relevant to the wrongdoing and does not unnecessarily disclose confidential company or confidential commercial information unrelated to the wrongdoing.
Awareness
To be effective, a Whistleblowing Policy should ensure that workers are aware of and, critically, trust the arrangements put in place. The policy should be widely promoted throughout the organisation to maximise awareness. This is important to underpin a culture of open and safe disclosure. There is value in relevant staff with specific responsibilities (for example designated officers and senior managers) being trained in the operation of the policy and on how to handle concerns.
Review
It is recommended that the policy be reviewed periodically to assess its effectiveness.
What are the Protections for a Worker making a disclosure?
The Act provides for a number of protections.
Employees, as defined in the Protected Disclosures Act, have access to the State’s dispute resolution machinery as follows:
Protection from Penalisation
If an employee feels that the employer has penalised him/her for making a protected disclosure, the employee may refer the matter to an Adjudicator of the Workplace Relations Commission. Generally speaking such action by the employer would encompass any action which could be interpreted as penalisation by the employer against the employee for having made a protected disclosure.
An Adjudicator will hear the case and issue a decision. A decision could declare that the complaint was not well founded, or if declared well founded, require the employer to take a specified course of action, including payment of compensation. The decision of an Adjudicator may be appealed to the Labour Court.
Protection from Dismissal
The Act provides that an employee who is penalised by dismissal following the making of a protected disclosure may claim that he/she has been unfairly dismissed. There are extensive protections set out in the Unfair Dismissals Acts for protection against unfair dismissals. In addition (a) there is no minimum service requirement to avail of the Unfair Dismissal Acts arising from making a protected disclosure and (b) compensation for unfair dismissal on grounds of making a protected disclosure can be up to a maximum of 5 years remuneration.
Furthermore, where an employee is dismissed on foot of having made a protected disclosure, protection in the form of “interim relief” on application to the Circuit Court is available to prevent an unfair dismissal proceeding in advance of an outcome being determined.
The following protections are available to all workers making a protected disclosure:
Right of take action through the Civil Courts;
Immunity from Civil Liability where a worker making a disclosure suffers detriment;
Making a protected disclosure does not constitute a criminal offence;
Right of confidentiality.
Appendix
Model Whistleblowing Policy
What is Whistleblowing?
Whistleblowing occurs when a worker raises a concern or discloses information which relates to wrongdoing, illegal practices or unethical conduct which has come to his/her attention through work.
Our whistle-blowing policy is intended to encourage and enable workers to raise concerns within our workplace rather than overlooking a problem or “blowing the whistle” externally. Under this policy a worker is entitled to raise concerns or disclose information without fear of penalisation or threat of less favourable treatment, discrimination or disadvantage.
Our Commitment
This organisation is committed to maintaining an open culture with the highest standards of honesty and accountability where our workers can report any concerns in confidence.
Who does the policy apply to –
This policy applies to all of our workers including our employees at all levels. (References as appropriate to e.g. agency workers, trainees, apprentices, interns etc.).
It is important to note that should you have a concern in relation to your own employment or personal circumstances in the workplace it should be dealt with by way of our Grievance Procedure. Likewise concerns arising in regard to workplace relationships should generally be dealt with through our Dignity in the Workplace policy.
It is also important to note that this policy does not replace any legal reporting or disclosure requirements. Where statutory reporting requirements and procedures exist these must be complied with fully.
Aims of the Policy
To encourage you to feel confident and safe in raising concerns and disclosing information;
To provide avenues for you to raise concerns in confidence and receive feedback on any action taken;
To ensure that you receive a response where possible to your concerns and information disclosed;
To reassure you that you will be protected from penalisation or any threat of penalisation.
What types of concerns can be raised?
A concern or disclosure should relate to a relevant wrongdoing such as possible fraud, crime, danger or failure to comply with any legal obligation which has come to your attention in connection with your employment and about which you have a reasonable belief of wrongdoing.
What types of concerns should not be raised under this Procedure?
A personal concern, for example a grievance around your own contract of employment would not be regarded as a whistleblowing concern and would be more appropriately processed through our Grievance Procedure.
Safeguards and Penalisation
A worker who makes a disclosure and has a reasonable belief of wrongdoing will not be penalised by this organisation, even if the concerns or disclosure turn out to be unfounded.
Penalisation includes suspension/dismissal, disciplinary action, demotion, discrimination, threats or other unfavourable treatment arising from raising a concern or making a disclosure on the basis of reasonable belief for doing so. If you believe that you are being subjected to penalisation as a result of making a disclosure under this procedure, you should inform your manager/senior manager immediately.
Workers who penalise or retaliate against those who have raised concerns under this policy will be subject to disciplinary action.
Workers are not expected to prove the truth of an allegation. However they must have a reasonable belief that there are grounds for their concern. It should be noted that appropriate disciplinary action may be taken against any worker who is found to have raised a concern or raised a disclosure with malicious intent.
Confidentiality
This organisation is committed to protecting the identity of the worker raising a concern and ensures that relevant disclosures are treated in confidence. The focus will be on the wrongdoing rather than the person making the disclosure.
However there are circumstances, as outlined in the Act, where confidentiality cannot be maintained particularly in a situation where the worker is participating in an investigation into the matter being disclosed. Should such a situation arise, we will make every effort to inform the worker that his/her identity may be disclosed.
Raising a Concern Anonymously
A concern may be raised anonymously. However on a practical level it may be difficult to investigate such a concern. We would encourage workers to put their names to allegations, with our assurance of confidentiality where possible, in order to facilitate appropriate follow-up. This will make it easier for us to assess the disclosure and take appropriate action including an investigation if necessary.
Procedure
Raising a Concern
Who should you raise your concern with?
As a first step, appropriate concerns should be raised with your immediate manager or their superior. However should you not wish to use this route, for example given the seriousness and sensitivity of the issues involved, you should approach senior management.
How to raise a concern
Concerns may be raised verbally or in writing. Should you raise a concern verbally we will keep a written record of our conversation and provide you with a copy after our meeting. Should you raise a concern in writing we would ask you to give the background and history of the concern, giving relevant details, insofar as is possible, such as dates, sequence of events and description of circumstances.
The earlier you express the concern the easier it will be for us to deal with the matter quickly.
Having raised your concern with us, we will arrange a meeting to discuss the matter with you on a strictly confidential basis. We will need to clarify at this point if the concern is appropriate to this procedure or is a matter more appropriate to our other procedures, for example our Grievance or Dignity in the Workplace procedures. You can choose whether or not you want to be accompanied by a colleague or a trade union representative. In regard to confidentiality, it is important that there should be an awareness of respecting sensitive company information, which, while unrelated to the disclosure, may be disclosed in the course of a consultation or investigation process.
How we will deal with your disclosure
Having met with you in regard to your concern and clarified that the matter is in fact appropriate to this procedure, we will carry out an initial assessment to examine what actions we need to take to deal with the matter. This may involve simply clarifying certain matters, clearing up misunderstandings or resolving the matter by agreed action without the need for an investigation.
If, on foot of the initial assessment, we conclude that there are grounds for concern that cannot be dealt with at this point, we will conduct an investigation which will be carried out fairly and objectively. The form and scope of the investigation will depend on the subject matter of the disclosure.
Disclosures may, in the light of the seriousness of the matters raised, be referred immediately to the appropriate authorities. Likewise if urgent action is required (for example to remove a health and safety hazard), this action will be taken.
It is important to us that you feel assured that a disclosure made by you under
this policy is taken seriously and that you are kept informed of steps being taken by us in response your disclosure. In this regard we undertake to communicate with you as follows:
We will acknowledge receipt of your disclosure and arrange to meet with you as outlined above;
We will inform you of how we propose to investigate the matter and keep you informed of actions, where possible, in that regard including the outcome of any investigation, and, should it be the case, why no further investigation will take place. However it is important to note that sometimes the need for confidentiality and legal considerations may prevent us from giving you specific details of an investigation.
We will inform you of the likely time scales in regard to each of the steps being taken but in any event we commit to dealing with the matter as quickly as practicable.
It is possible that in the course of an investigation you may be asked to clarify certain matters. To maximise confidentiality such a meeting can take place off site and you can choose whether or not to be accompanied by a colleague or trade union representative.
Where a concern is raised or a disclosure is made in accordance with this policy, but the allegation is subsequently not upheld by an investigation, no action will be taken against the worker making the disclosure and the worker will protected against any penalisation. It is important to note that if an unfounded allegation is found to have been with malicious intent, then disciplinary action may be taken.
How the matter can be taken further
The aim of this Policy is to provide an avenue within this workplace to deal with concerns or disclosures in regard to wrongdoing. We are confident that issues can be dealt with “in house” and we strongly encourage workers to report such concerns internally.
We acknowledge that there may be circumstances where an employee wants to make a disclosure externally, and the legislation governing disclosures — The Protected Disclosures Act 2014 — provides for a number of avenues in this regard.
It is important to note however that while you need only have a reasonable belief as to wrong doing to make a disclosure internally, if you are considering an external disclosure, different and potentially more onerous obligations apply depending on to whom the disclosure is made.
Communication, Monitoring and Review
This policy will be communicated as appropriate and will be subject to regular monitoring and review in consultation with our workforce and their representatives.
Code of Practice on Sexual Harassment and Harassment at Work
S39 Employment Equality Act
S39 Equal Status Act.
The functions of the Equality Authority under the Employment Equality Act 1998 and the Equal Status Act 2000 include:
— Working towards the elimination of discrimination in employment and in relation to matters to which the Equal Status Act applies — The promotion of equality of opportunity
— The provision of information on the working of both Acts
— Keeping under review the working of the Employment Equality Act and the Equal Status Act and whenever necessary to make proposals to the Minister for Justice and Equality for the amendment of those Acts.
Certain provisions in the Employment Equality Act 1998 and the Equal Status Act 2000 were amended by the Equality Act 2004 .
References in this code to the Employment Equality Act mean to the Employment Equality Acts 1998 to 2011. References to the Equal Status Act mean to the Equal Status Acts 2000 to 2011.
References to the relevant sections of these Acts are given in the margins.
S56 Employment Equality Act
Paragraph (g) of the Schedule to the Equal Status Act.
Within these functions the Equality Authority may prepare codes of practice in furtherance of the elimination of discrimination and the promotion of equality of opportunity. Section 56(4) of the Employment Equality Act as amended by paragraph (g) of the Schedule to the Equal Status Act provides that:
‘An approved code of practice shall be admissible in evidence and, if any provision of the code appears to be relevant to any question arising in any criminal or other proceedings, it shall be taken into account in determining that question; and for this purpose “proceedings” includes, in addition to proceedings before a court and under Part VII or under Part III of the Equal Status Act 2000 , proceedings before the Labour Court, the Labour Relations Commission, the Employment Appeals Tribunal, the Equality Tribunal and a rights commissioner’.
What follows is a code of practice within the meaning of section 56(1) and (4) of the Employment Equality Act as amended by paragraph (g) of the Equal Status Act.
The impact of sexual harassment and harassment.
PART 1: Foreword
Sexual harassment, and harassment on the eight other non-gender discriminatory grounds, pollute the working environment and can have a devastating effect on the health, confidence, morale and performance of those affected by it. The anxiety and stress produced by sexual harassment and harassment may lead to those subjected to it taking time off work due to sickness and stress, being less efficient at work or leaving their job to seek work elsewhere. Employees often suffer the adverse consequences of the harassment itself and, in addition, the short and long term damage to their employment prospects if they are forced to forego promotion or to change jobs. Sexual harassment and harassment may also have a damaging impact on employees not themselves the object of unwanted behaviour but who are witness to it or have a knowledge of the unwanted behaviour.
There are also adverse consequences arising from sexual harassment and harassment for employers. It has a direct impact on the profitability of the enterprise where staff take sick leave or resign their posts because of sexual harassment or harassment. It can also have an impact on the economic efficiency of the enterprise where employees’ productivity is reduced by having to work in a climate in which the individual’s integrity is not respected.
Some specific groups are particularly vulnerable to sexual harassment and harassment as there may be a link between the risk of sexual harassment or harassment and an employee’s perceived vulnerability — such as might be the case with new entrants to the labour market, those with irregular or precarious employment contracts and employees in non-traditional jobs.
PART 2: Introduction
This code has been prepared by the Equality Authority with the approval of the Minister for Justice and Equality and after consultation with IBEC, ICTU and other relevant organisations representing equality interests.
Aim.
This code aims to give practical guidance to employers, employers’ organisations, trade unions and employees on:
— what is meant by sexual harassment and harassment in the workplace
— how it may be prevented
— what steps to take if it does occur to ensure that adequate procedures are readily available to deal with the problem and to prevent its recurrence.
Status.
The code thus seeks to promote the development and implementation of policies and procedures which establish working environments free of sexual harassment and harassment and in which the dignity of everyone is respected.
The provisions of this code are admissible in evidence and if relevant may be taken into account in any criminal or other proceedings before a court and under Part VII of the Employment Equality Act, and also in proceedings before the Labour Court, the Labour Relations Commission, the Employment Appeals Tribunal, the Equality Tribunal and a rights commissioner.
This code does not impose any legal obligations in itself, nor is it an authoritative statement of the law — that can only be provided by the Equality Tribunal, the Labour Court and the courts. It is the employer’s responsibility to ensure compliance with the Employment Equality Acts and European equality law.
Application and adaptation of the code.
The code is intended to be applicable to all employments, employment agencies and trade unions, employer bodies and professional bodies that are covered by the Employment Equality Act. Employers are encouraged to follow the recommendations in a way which is appropriate to the size and structure of their organisation. It may be relevant for small and medium sized enterprises to adapt some of the practical steps to their specific needs. Any adaptations that are made however, should be fully consistent with the code’s general intention.
An employer is legally responsible for the sexual harassment and harassment suffered by employees in the course of their work unless he/she took reasonably practicable steps to prevent sexual harassment and harassment from occurring, to reverse the effects of it and to prevent its recurrence. Employers who take the steps set out in the code to prevent sexual harassment or harassment, to reverse the effects of it and to prevent its recurrence, may avoid liability for such acts in any legal proceedings brought against them.
It is essential that employers have in place accessible and effective policies and procedures to deal with sexual harassment and harassment. These measures should be agreed by the employers with the relevant trade union or employee representatives. In so far as practicable, clients, customers and business contacts should also be consulted.
Equality of opportunity.
A policy on sexual harassment and harassment at work is an integral part of equal opportunities strategies in the workplace. Such policies will be more effective when operated in conjunction with similar policies on equal opportunities and health and safety.
The Law and Employers’ Responsibilities: S8 Employment Equality Act.
PART 3: Employment Equality Act 1998
The Employment Equality Act prohibits discrimination on nine specific grounds in all aspects of a person’s employment, including:
— Access to employment
— Conditions of employment
— Training or experience
— Promotion or regrading
— Classification of posts
— Vocational training
— Equal pay
— (It may also apply in certain circumstances when the relationship has ended, for example to references).
The Act applies to employers, employment agencies, trade unions, employer bodies and professional and trade organisations.
Discriminatory grounds.
An employer must not treat an employee less favourably because of their:Gender
— man, woman, (this also includes transgender).
Civil Status
— single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or been dissolved.
Family Status
— responsibility as a parent or as a person in loco parentis in relation to a person under 18, or as a parent or the resident primary carer of a person over 18 with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis.
Sexual Orientation
— heterosexual, bisexual or homosexual.
Disability — this is very broadly defined in section 2(1) of the Employment Equality Act and includes most disabilities.“Disability” means—
(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour, and includes a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.
Age — the protection against age-related discrimination (including harassment) in employment applies only to employees over the maximum age at which a person is statutorily obliged to attend school. The minimum school leaving age is currently 16 years, or the completion of three years of post-primary education, whichever is the later.
Race — race, colour, nationality or ethnic or national origins.
Religious Belief — includes different religious background or outlook, (including absence of religious belief).
Membership of the Traveller Community — “Traveller community” means the community of people who are commonly called Travellers and who are identified (both by themselves and others) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland.
Reasonable accommodation: S16 Employment Equality Act.
Employers have obligations to reasonably accommodate employees with disabilities (unless such measures would impose a disproportionate burden). This obligation should be taken account of in the format and content of any policies or procedures on sexual harassment and harassment, and in their implementation.
Victimisation: S74(2) Employment Equality Act.
The Employment Equality Act protects employees who, for example, seek redress under the Act, support a complainant, or give evidence in proceedings, by prohibiting their being victimised by dismissal or other penalty for doing so.
Harassment and sexual harassment.
The Employment Equality Act protects employees from employment-related sexual harassment and harassment. It distinguishes between sexual harassment (sexual or gender-based) and harassment based on one or more of the other grounds.
Harassment, sexual harassment and discrimination: S14A(1) Employment
Equality Act.
Harassment that is based on the following grounds — civil status, family status, sexual orientation, religion, age, disability, race, or the Traveller community ground — is a form of discrimination in relation to conditions of employment.
Sexual harassment is a form of discrimination on the gender ground in relation to conditions of employment.
What is harassment- S14A(7) Employment Equality Act.
Harassment is defined in section 14A(7) of the Employment Equality Act as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Bullying that is not linked to one of the discriminatory grounds is not covered by the Employment Equality Act.
The protection of the Act extends to situations where the employee does not have the relevant characteristic related to the discriminatory ground but the perpetrator believes that he/she has that characteristic, for example, if the perpetrator believes the employee is gay and the employee is not.
Many forms of behaviour, including spoken words, gestures or the display/circulation of words, pictures or other material, may constitute harassment. A single incident may constitute harassment. The following list of examples is illustrative rather than exhaustive:
— Verbal harassment – jokes, comments, ridicule or songs
— Written harassment – including faxes, text messages, emails or notices
— Physical harassment – jostling, shoving or any form of assault
— Intimidatory harassment – gestures, posturing or threatening poses
— Visual displays such as posters, emblems or badges
— Excessive monitoring of work
— Isolation or exclusion from social activities
— Unreasonably changing a person’s job content or targets
— Pressure to behave in a manner that the employee thinks is inappropriate, for example being required to dress in a manner unsuited to a person’s ethnic or religious background.
What is sexual harassment- S14A(7) Employment Equality Act.
Sexual harassment is defined in section 14A(7) of the Employment Equality Act as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
Many forms of behaviour can constitute sexual harassment. It includes examples like those contained in the following list although it must be emphasised that the list is illustrative rather than exhaustive. A single incident may constitute sexual harassment.
Physical conduct of a sexual nature — This may include unwanted physical contact such as unnecessary touching, patting or pinching or brushing against another employee’s body, assault and coercive sexual intercourse.
Verbal conduct of a sexual nature — This includes unwelcome sexual advances, propositions or pressure for sexual activity, continued suggestions for social activity outside the work place after it has been made clear that such suggestions are unwelcome, unwanted or offensive flirtations, suggestive remarks, innuendos or lewd comments.
Non-verbal conduct of a sexual nature — This may include the display of pornographic or sexually suggestive pictures, objects, written materials, emails, text-messages or faxes. It may also include leering, whistling or making sexually suggestive gestures.
Gender-based conduct — This includes conduct that denigrates or ridicules or is intimidatory or physically abusive of an employee because of his or her sex such as derogatory or degrading abuse or insults which are gender-related.
Unwelcome conduct.
The Employment Equality Act does not prohibit all relations of a sexual or social nature at work. To constitute sexual harassment or harassment the behaviour complained of must firstly be unwelcome. It is up to each employee to decide (a) what behaviour is unwelcome, irrespective of the attitude of others to the matter and (b) from whom, if anybody, such behaviour is welcome or unwelcome, irrespective of the attitudes of others to the matter. The fact that an individual has previously agreed to the behaviour does not stop him/her from deciding that it has become unwelcome. It is the unwanted nature of the conduct which distinguishes sexual harassment and harassment from behaviour which is welcome and mutual.
Violation of dignity.
In addition, to constitute sexual harassment or harassment under the Employment Equality Act the behaviour must have the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
Intention.
The intention of the perpetrator of the sexual harassment or harassment is irrelevant. The fact that the perpetrator has no intention of sexually harassing or harassing the employee is no defence. The effect of the behaviour on the employee is what is relevant.
Sexual harassment and harassment by employers, employees and non-employees: S14A(1) and S14A(4) of the Employment Equality Act.
The Employment Equality Act protects employees from sexual harassment and harassment by:
— the employer
— fellow employees
— clients
— customers
— other business contacts including any person with whom the employer might reasonably expect the employee to come into contact in the workplace. This may include those who supply or deliver goods/services to the employer, maintenance and other types of professional contractors, as well as volunteers.
Non-workplace sexual harassment and harassment: S14A(1) Employment Equality Act.
The scope of the sexual harassment and harassment provisions extend beyond the workplace, for example to conferences and training that occur outside the workplace. It may also extend to work-related social events.
Different treatment because of acceptance or rejection of sexual harassment or harassment: S14A(1) and S14A(3) of the Employment Equality Act.
The protection of the legislation extends to circumstances in which, because he/she has rejected or accepted sexual harassment or harassment, an employee is treated differently in the workplace, for example in relation to decisions concerning access to training, promotion or salary.
Employment Agencies and Vocational Training: S14A(5) Employment Equality Act.
The provisions on sexual harassment and harassment also apply to employment agencies and vocational training.
Obligations on Employers: S14A(2) Employment Equality Act.
The Employment Equality Act requires employers to act in a preventative and remedial way.
Defence of reasonably practicable steps: S14A(2) Employment Equality Act.
Employers are legally responsible for the sexual harassment and harassment of employees carried out by co-employees, clients, customers or other business contacts of the employer. It is a defence for the employer to prove that he/she took reasonably practicable steps to prevent:
— the employee from being harassed
— the employee from being treated differently in the workplace or in the course of employment and, if and so far as any such treatment has occurred, to reverse the effects of it.
In order to rely on this defence employers must show that they have comprehensive, accessible, effective policies that focus on prevention, best practice and remedial action, and also accessible effective complaints procedures. The measures taken to put the policies and procedures into practice will also be taken into account by courts and tribunals: employers will not be able to rely on an excellent policy if it has not been effectively implemented. The core elements of a policy and complaints procedure are outlined in Parts (4) and (5) of this code.
Time limits and Remedies under S74-93 Employment Equality Act.
A complaint of sexual harassment or harassment, including complaints relating to dismissal in circumstances amounting to discrimination or victimisation, may be made to the Director of the Equality Tribunal who may refer the complaint to an Equality Officer or, with the parties’ agreement, for mediation.
In sexual harassment complaints (and all gender-based complaints) the employee may bypass the Tribunal and refer the matter to the Circuit Court.
A complaint must be made within 6 months of the alleged occurrence of sexual harassment or harassment or of the most recent occurrence of such harassment. The time limit of six months may be extended up to a maximum period of 12 months where reasonable cause is shown.
The maximum that can be awarded by the Equality Tribunal, and the Labour Court on appeal, is 104 weeks pay or €40,000, whichever is the greater. However, section 82(3) provides that no enactment relating to the jurisdiction of the Circuit Court shall be taken to limit the amount of compensation which may be awarded by the Circuit Court.
The Equality Tribunal, Labour Court or the Circuit Court may order re-instatement or re- engagement.
S98 Employment Equality Act.
To dismiss an employee for making a complaint of sexual harassment or harassment under the Employment Equality Act in good faith is an offence: an employer on conviction may be ordered to pay a fine and compensation, or the court may order re-instatement or re-engagement.
Right to seek information: S76 and S81 Employment Equality Act.
Prior to making a complaint under the Employment Equality Act an employee is entitled to seek “material information” from an employer about alleged acts of sexual harassment or harassment, the employer’s failure to deal with them or about relevant procedures. There is no obligation on the employer to provide the information, but the Circuit Court, the Equality Tribunal or the Labour Court, in subsequent proceedings, may draw such inferences as seem appropriate from the failure to supply the information.
PART 4: The Policy
Prevention is the best way to minimise sexual harassment and harassment in the workplace. An effective policy, and a strong commitment to implementing it, is required. The purpose of an effective policy is not simply to prevent unlawful behaviour but to encourage best practice and a safe and harmonious workplace where such behaviour is unlikely to occur. This policy is likely to be more effective when it is linked to a broader policy of promoting equality of opportunity.Employers should adopt, implement and monitor a comprehensive, effective and accessible policy on sexual harassment and harassment.
Preparing the Policy.
Strategies to create and maintain a working environment in which the dignity of employees is respected are most likely to be effective when they are jointly agreed. In this way, employers and other parties to the employment relationship can create an anti-harassment culture and share a sense of responsibility for that culture.
The policy and complaints procedure should be adopted, where appropriate, in so far as is practicable with clients, customers and other business contacts after consultation or negotiation with trade union or employee representatives, where possible, over its content and implementation.Simple direct language should be used in the policy. It should be accessible to those with literacy problems and those who may not speak fluent English.
Core Elements and Implementation Steps.
(1) The policy should begin by declaring:
(a) the organisation’s commitment to ensuring that the workplace is free from sexual harassment and harassment
(b) that all employees have the right to be treated with dignity and respect
(c) that complaints by employees will be treated with fairness and sensitivity and in as confidential a manner as possible
(d) that sexual harassment and harassment by employers, employees and non-employees such as clients, customers and business contacts will not be tolerated and could lead to disciplinary action (in the case of employees) and other sanctions, for example the suspension of contracts or services, or exclusions from premises (in the case of non-employees).
(2) Definitions and Scope
(a) the policy should set out definitions of sexual harassment and harassment which are simple, clear and practical;
(b) a non-exhaustive list of examples should be provided;
(c) the policy should state that the protection extends to:
— sexual harassment and harassment by co-workers, clients, customers and other business contacts
— beyond the workplace to conferences and training and may extend to work-related social events
— different treatment of an employee because he/she has rejected or accepted the sexual harassment or harassment
— employment agencies and vocational training;
(d) the policy should emphasise that it is up to the employee to decide what behaviour is unwelcome irrespective of the attitude of others to the matter;
(e) the policy should state that employees who, for example, make a complaint, support a complainant, or who give evidence in proceedings, will not be victimised.
(3) Allocation of responsibilities under the ActThe policy should state that management and others in positions of authority have a particular responsibility to ensure that sexual harassment and harassment does not occur and that complaints are addressed speedily. The policy should state that in particular management will:
— provide good example by treating all in the workplace with courtesy and respect
— promote awareness of the organisation’s policy and complaints procedures
— be vigilant for signs of harassment and take action before a problem escalates
— respond sensitively to an employee who makes a complaint of harassment
— explain the procedures to be followed if a complaint of sexual harassment or harassment is made
— ensure that an alleged perpetrator is treated fairly
— ensure that an employee making a complaint is not victimised for doing so
— monitor and follow up the situation after a complaint is made so that sexual harassment or harassment does not recur.
(4) Trade Unions
The policy should address the contribution to be made by the trade union/s. Trade unions can play a role in the prevention of sexual harassment and harassment in the workplace through their participation in the development and implementation of policies and procedures, through their information and training services, and through the collective bargaining process. Trade unions may also play a role in providing information, advice and representation to employees who have been sexually harassed or harassed, and to employees against whom allegations of sexual harassment and harassment have been made.
(5) Employees
The policy should make it clear that employees may contribute to achieving a harassment-free environment through co-operating with management and trade union strategies to eliminate sexual harassment and harassment, and that sexual harassment and harassment by employees constitutes misconduct and may lead to disciplinary action. The policy should also emphasise that employees must conduct themselves so as to respect the rights of others to dignity in the workplace.
(6) Non-Employees
The policy should point out that sexual harassment and harassment by non-employees such as clients, customers and business contacts will not be tolerated and may lead, for example, to termination of contracts, suspension of services, exclusion from a premises or the imposition of other sanctions (as appropriate).
(7) Communication of Policy
The policy should include a commitment to effective communication. It should be communicated effectively to all those potentially affected by it including management, employees, customers, clients and other business contacts, including those who supply and receive goods and services. Effective means of communicating a policy could include, for example, newsletters, training manuals, training courses, leaflets, websites, emails and notice boards.
To Employees
Employees, including those in management and all other positions of responsibility, should be made aware of the policy as part of any formal induction process whereby new employees become familiar with their job and their working environment and rules and regulations that apply such as health and safety.
Employers should consider a staff handbook where practicable to be distributed to all employees as part of the induction process. This handbook will need to be updated regularly to reflect relevant changes.
To Non-Employees
There may be some practical difficulties in ensuring that the policy is effectively communicated to every relevant person particularly where there is no ongoing relationship. Summaries of policies should be prominently displayed. This may not be feasible for retail outlets or pubs: these should prominently display a short statement confirming the policy’s existence and the organisation’s commitment to it, making it clear that the complete policy is available.
The effective communication of the policy should be easier where there is an ongoing relationship with clients and customers. This can be achieved by way of a combination of measures such as:
— leaflets summarising the policy being prominently displayed where members of the public, clients, and customers attend such as receptions and waiting rooms
— including a leaflet or short written statement summarising the policy in any of the company written material such as appropriate brochures etc.
— it may be appropriate for the contracts of the employer with clients, customers and other business contacts to provide that sexual harassment or harassment of employees of the employer will constitute a repudiation of the contract and may be a ground for the employer to treat the contract as at an end.
(8) Monitoring
The policy should include a commitment to monitoring incidents of sexual harassment and harassment.
The only way an organisation can know whether its policy and procedures are working is to keep careful track of all complaints of sexual harassment and harassment and how they are resolved. This monitoring information should be used to evaluate the policy and procedures at regular intervals, with changes recommended where appropriate.
(9) TrainingThe policy should include commitments to training staff on issues of sexual harassment and harassment.An important means of ensuring that sexual harassment or harassment does not occur is through the provision of training for managers, supervisors and all staff. This should happen for staff at induction or through appropriate awareness-raising initiatives. Such training should aim to identify the factors which contribute to a working environment free of sexual harassment and harassment and to familiarise participants with their responsibilities under the employer’s policy and problems they are likely to encounter. This is considered especially important for those members of staff responsible for implementing the policy and processing complaints.
(10) Complaints Procedure
The policy should set out a complaints procedure.
It is essential for employers to attach to their policy a detailed complaints procedure that will be available to employees. Clients, customers and others who interact regularly with the organisation should be made aware of the employees’ right to make a complaint and that they may be requested to participate in the process.
(11) ReviewsThe policy should include a commitment to review on a regular basis in line with changes in the law, relevant caselaw or other developments. A competent person should be designated to ensure that monitoring, training and reviews occur.
PART 5: The Complaints Procedure
The development of clear and precise procedures to deal with sexual harassment and harassment once it has occurred is of great importance. The procedure should ensure the resolution of problems in an effective and timely manner. Practical guidance for employees on how to deal with sexual harassment and harassment will make it more likely that these problems will be dealt with at an early stage.
The following are core elements which are relevant to any complaints procedure. They will need to be adapted and expanded upon to reflect the size and complexity of the employment.
Core Elements.
(1) Plain language
The procedures should be set out clearly, step by step, in plain language and, where appropriate, in relevant languages and formats so that a person making a complaint knows what to do and who to approach.
(2) Time limits
Time limits should be set for every stage of the investigation.
(3) Statutory rights
The procedure should make it clear that using the complaints procedure will not affect the complainant’s right to make a complaint under the Employment Equality Act and should point out the statutory time limits.
(4) Victimisation
The complaints procedure should make clear that an employee will not be victimised or subject to sanction, for example, for making a complaint in good faith, supporting a complainant, giving evidence in proceedings, or by giving notice of an intention to do any of the foregoing.
The procedure should make clear that in the course of investigating the complaint the employer will make no assumptions about the culpability of the alleged perpetrator.
(5) Sanctions
Employees should be informed that, in the event of the complaint being upheld, the disciplinary process will be invoked which may lead to disciplinary sanctions up to and including dismissal. Non-employees should be informed that, in the event of the complaint being upheld, appropriate sanctions may be imposed which could in particular circumstances include termination of contract, suspension of service, exclusion from premises etc. as appropriate.
(6) Confidentiality
The procedure should make clear that confidentiality will be maintained throughout any investigation to the greatest extent consistent with the requirements of a fair investigation.
Resolving the problem informally.
Most of those who experience sexual harassment or harassment simply want the harassment to stop. The complaints procedure should provide for both informal and formal methods of resolving problems.
The procedure should provide for a competent named person to be available to assist in the resolution of any problems through informal means and to provide information to both employees and non-employees on the procedure and on the policy in general.
The employee who is being sexually harassed or harassed should object to the conduct where this is practicable. The complaints procedure should provide that employees should attempt to resolve the problem informally in the first instance. In some cases it may be possible and sufficient for the employee to explain clearly to the person engaging in the unwanted conduct that the behaviour in question is not welcome, that it offends them or makes them uncomfortable, and that it interferes with their work.
In circumstances where it is too difficult for an individual to do this on his/her own, an alternative approach would be to seek support from, or for an initial approach to be made by, a sympathetic friend, designated person or trade union representative.The informal process could provide for mediation.
Formal complaints procedure.
The complaints procedure should also provide for a formal complaints procedure where:
— the employee making the complaint wishes it to be treated formally or
— the alleged sexual harassment or harassment is too serious to be treated under the informal procedure or
— informal attempts at resolution have been unsatisfactory or
— the sexual harassment or harassment continues after the informal procedure has been followed.
Investigation of the complaint.
The procedure should provide that investigation of any complaint will be handled with fairness, sensitivity and with due respect for the rights of both the complainant and the alleged perpetrator. The investigation should be, and be perceived as, independent and objective: to this end it is essential that the principles of natural justice be adhered to.
Those carrying out the investigation should not be connected with the allegation in any way. It is preferable that at least two people should investigate a complaint but it is acknowledged that this may not always be practicable. Such an investigation team should have gender balance and ideally should seek to ensure diversity across the other eight grounds. All of those on the investigation team should have received appropriate training. Every effort should be made to resolve the complaint speedily. External assistance may be necessary to deal with complaints in some circumstances so as to ensure impartiality, objectivity and fairness in an investigation.
To ensure procedural fairness both the complainant and alleged perpetrator should be informed of the following:
— what the formal procedure entails and the relevant time frame
— that both parties have the right to be accompanied and/or represented, by a representative, trade union representative, a friend or colleague
— that the complaint should be in writing and that the alleged perpetrator will be given full details in writing of the nature of the complaint including written statements and any other documentation or evidence including witness statements, interview notes or records of meetings held with the witnesses
— that the alleged perpetrator will be given time to consider the documentation and an opportunity to respond
— that confidentiality will be maintained throughout any investigation to the greatest extent consistent with the requirements of a fair investigation
— that a written record will be kept of all meetings and investigations — that the investigation, having considered all of the evidence before it and the representations made to it, will produce a written report to both parties outlining its findings and the reasons for its final decision
— if the complaint is upheld against an employee the report will recommend whether the organisation’s disciplinary procedure should be invoked
— if the complaint is upheld against a non-employee the report should recommend appropriate sanctions against the non-employee or his/her employer which could extend where appropriate to:
• exclusion of the individual from premises
• suspension or termination of service
• suspension or termination of a supply service or other contract
• the report may also, or as an alternative, recommend other actions such as training, or more effective promotion of the organisation’s policy on sexual harassment and harassment.
— if a right of appeal exists both parties should be informed of it and the time limits and procedures involved
Both parties to a complaint should receive support (for example, counselling or other intervention as appropriate) and regular review following the investigation as the process is likely to result in tension and disharmony between the parties, co-employees, teams, etc, at least in the short-term.
It is the responsibility of the employer to provide for proper notifications regarding the investigation process and for a fair determination of the complaint. What is required in any particular instance will depend on the circumstances and/or complexity of the case and may require the adaptation of the procedures.
Non-Employees.
It is possible that if the person accused of sexual harassment or harassment is not an employee, he/she will not wish to participate in the formal procedure, and it will not be possible to secure their participation. Nonetheless a non-employee must be kept informed of all developments and given an opportunity to respond to them. The outcome of the investigation and any potential sanctions must also be explained to the non-employee and/or any person or company for whom he/she works.
PART 6: Reasonable Accommodation
The content, form and implementation of the policy and procedures should be accessible to all with adjustments made and steps taken to ensure accessibility in particular for people with disabilities. Examples would include the translation of policies and procedures into Braille or large print formats or the availability of signers.
PART 7: Accessibility
Certain measures may be necessary to ensure the accessibility of policies and procedures, for example, the translation of policies and procedures into languages other than English as appropriate or the provision of interpreters.
PART 8: Review of this Code
The Employment Equality Act has been in operation since October 1999. As case law and other developments occur in the area of sexual harassment and harassment, it will be necessary to further review and amend this code to reflect these changes.
PART 9: Sources of Other Information and Advice
Equality Authority, Clonmel Street, Dublin 2
Tel: (01) 4173336 Lo-Call: 1890 245545
e-mail: info@equality.ie; website: www.equality.ie
ICTU, 31/32 Parnell Square, Dublin 1Tel: (01) 8897777 website: www.ictu.ie
IBEC, 84/86 Lwr. Baggot Street, Dublin 2
Tel: (01) 6601011 website: www.ibec.ie
Rape Crisis Centre, 70 Lower Leeson Street, Dublin 2
Tel: (01) 6614911 (01) 6614564 (after 5.30 pm and weekends) Freefone: 1800 77 88 88
Labour Relations Commission
Tom Johnson House, Haddington Road, Dublin 4
Tel: (01) 6609662; website: www.lrc.ie
Health and Safety Authority, 10 Hogan Place, Dublin 2
Tel: (01) 6147000; website: www.hsa.ie
National Disability Authority, 25 Clyde Road, Dublin 4
Tel: (01) 6080400; website: www.nda.ie
The following codes of practice may also be of assistance:
— Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work, 2007, prepared by the Health and Safety Authority;
— Code of Practice on Victimisation ( S.I. No. 139 of 2004 ) prepared by the Labour Relations Commission;
— Procedures for Addressing Bullying in the Workplace ( S.I. No. 17 of 2002 ) prepared by the Labour Relations Commission;
— Code of Practice on Grievance and Disciplinary Procedures ( S.I. No. 146 of 2000 ) prepared by the Labour Relations Commission;
— Code of Practice on Accessibility of Public Services and Information Provided by Public Bodies, 2006, prepared by the National Disability Authority.
Appendix 1 — EU Developments
European Commission Recommendation:definition of sexual harassment.
The European Commission’s code of practice annexed to its Recommendation of 27th November, 1991 on the protection of the dignity of women and men at work (92/131/ EEC) provides the following definition:
“Sexual harassment means unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work”.
Framework and “Race” Directives: definitions of harassment.
Council Directive 2000/78/EC of 27th November, 2000 establishing a general framework for equal treatment in employment and occupation and Council Directive 2000/43/EC of 29th June, 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, contain definitions of harassment referable to religion or belief, disability, age or sexual orientation (Framework Directive) and racial or ethnic origin (“Race” Directive).
These Directives define harassment as follows:
“When unwanted conduct” (related to membership of a particular group) (………..) takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment”.
Directive on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast)
Directive 2006/54/EC of 5th July 2006 recast in a single text the main provisions in this area as well as including certain developments in the case law of the Court of Justice of the European Communities. Article 2(1)(c) and (d) respectively define gender-based harassment and sexual harassment:
(c) “harassment”: where unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment;
(d) “sexual harassment”: where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment…..’
Earley -v- Health Service Executive
Reassignment
[2017] IECA 158 (15 May 2017)
RESPONDENT
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 15th day of May 2017
1. In November 2012 the plaintiff, Ms. Helen Earley, was appointed to her current position as Area Director of Nursing, Mental Health Services for the Galway/Roscommon area pursuant to a written contract of employment. It is clear from the terms of the job description for this position that this was a senior post within the Health Service Executive (“HSE”) which entailed both clinical and management responsibilities. The evidence, indeed, was that the plaintiff had responsibility for some 60 facilities in these two counties. The plaintiff is now aged 57 and has been employed with the HSE since 1998. It is important to state that she has an unblemished employment history.
2. On 1st July 2015 the plaintiff received a letter from Mr. Bernard Gloster, Chief Officer of the HSE Mid-West and interim chief officer of the HSE West, to the effect that she was to be temporarily reassigned from her position as an Area Director of Nursing for Galway/Roscommon Mental Health Services as Area Director of Nursing in a specialised capacity to the Programme Management Office of the National Mental Health Division of the HSE. Ms. Earley’s reporting obligations were also changed, as she was now required to report to the Head of Planning, Performance and Programme Management. This re-assignment took effect from the 6th July 2015. On that date a Mr. Brian O’Malley was appointed as Acting Area Director of Nursing. In that letter Mr. Gloster had explained that her “substantive post will be filled on a specific purpose contract pending further decision making.”
3. It was this re-assignment which gave rise to the present proceedings. On 30th July 2015 Kennedy J. granted the plaintiff an interlocutory injunction which prevented the HSE giving effect to this re-assignment pending the trial of the action: see Earley v. Health Service Executive [2015] IEHC 520. The full hearing of the action in the High Court was heard by O’Connor J. in November 2015. In his reserved judgment delivered on 27th November 2015 O’Connor J. found that the re-assignment of the plaintiff was lawful and he refused to grant her any of the injunctive or declaratory relief which she had sought: see Earley v. Health Service Executive [2015] IEHC 841.
4. The plaintiff has now appealed against that decision, contending that the HSE breached the terms of her employment contract in re-assigning her in the way which it did. It is agreed that this re-assignment was not a disciplinary process. The only issue which this Court is now required to consider is whether the plaintiff’s contract of employment permitted such a re-assignment.
5. As will presently become clear, for the purposes of this judgment I have only found it necessary to address the terms of the plaintiff’s contract of employment and the relevant statutory provisions. I have not found it necessary to consider any of the other arguments relied on by the plaintiff. Before, however, considering the issue of the plaintiff’s employment contract issue it is first necessary to set out the relevant background facts.
The background facts
6. In April and May 2015 the HSE received a series of anonymous complaints to the effect, first, that a number of incidents had occurred at HSE facilities in the Galway/Roscommon area and, second, that these had not been dealt with appropriately by senior staff. A protected disclosure detailing certain complaints was also made by an identified member of the HSE staff.
7. It was decided that an investigation would be conducted in relation to these alleged incidents and the manner in which they were handled. The plaintiff was originally asked by her direct line manager, Ms. Catherine Cunningham, on 21st May, 2015 as to whether she would be prepared to be re-assigned, but she declined to take this step. In view, however, of these allegations and the difficulties presented in the Roscommon area for mental health services, the HSE concluded that it was necessary that certain interim measures should be put in place so that it could be assured that the day to day care and management arrangements were also appropriate. Furthermore, such was the concern regarding the state of the Roscommon Mental Health services that the HSE decided to commission a review of all aspects of the service in that county, including workplace culture and governance.
8. The plaintiff ultimately received an email from Mr. Gloster on 29th June 2015 which sought to explain the reasons for the re-assignment. In that e-mail Mr. Gloster referred to the five incidents, the HSE decision to conduct a full review of the Roscommon Mental Health Service and an unspecified “protected disclosure”. On the 1st July 2015, the plaintiff received a formal letter from Mr. Gloster informing her of the HSE’s decision to reassign her temporarily without prejudice. It was stressed that this was not a disciplinary process or investigation.
9. A review body was also established consisting of three independent experts to review the provision of services in Roscommon.
10. It was also accepted that the re-assignment was made without the plaintiff’s agreement, but it was nonetheless described as being in the nature of a protective and temporary measure, which was made on a without prejudice basis. What is not in doubt, however, is that the plaintiff was reassigned from a clinical role to a non-clinical role, albeit that her pay and other conditions were not otherwise affected. While Mr. Gloster was at pains to stress that this re-assignment did not reflect on the professional ability of the plaintiff, the plaintiff herself maintained that, as I have already indicated, given the nature and provenance of the allegations, the re-assignment did in fact reflect on her reputation and good name.
11. It was originally envisaged that the re-assignment would simply last for a matter of months pending the national review of the Roscommon mental health services which had been commissioned at the same time. As of the date of the hearing of this appeal (April 2017) the review body still had not, however, reported, albeit that counsel for the HSE, Mr. Ward S.C., informed us that a report was understood to be imminent and that the time frame for the delivery of the report had itself been extended. All of this meant that the plaintiff continued to be re-assigned to these other duties and this re-assignment has now lasted since July 2015, with the exception of the period from 30th July 2015 to 27th November 2015 when the plaintiff had obtained an interlocutory injunction from the High Court keeping her in her original post.
The plaintiff’s employment terms
12. The plaintiff’s contract of employment contained the following terms:
“1. Title: You are employed as Area Director of Nursing, Mental Health Service, Galway and Roscommon Mental Health Services….
4. Location: You will be employed in Galway and Roscommon Mental Health Services. Your initial assignment will be to Galway and Roscommon Mental Health Services. You may be required to work in any service area within the vicinity as the need arises.
5. Reporting Relationship: You will report to the area manager or other nominated manager.
6. Duties: The main duties of your position are set out in the job specification already supplied. In addition to your normal duties, you may be required to undertake other duties appropriate to your position as may be assigned to you, including deputising as appropriate….
16. Grievance Procedure: You have the right to seek redress in respect of any aspect of your terms and conditions of employment under the HSE Western Area’s Grievance Procedure, copy of which is attached. Should you have a grievance you should follow this procedure…..
25. Agreement: Your terms and conditions may be revised in accordance with agreements reached between the union representing your grade and the HSE Western Area.”
13. The elaborate job specification in respect of this post referred to in clause 6 of the contract of employment identified the plaintiff as a member of the multi-disciplinary management team preparing a local “vision for change implementation” for the area and included a particular section concerning “quality assurance”. This specification also stated:
“…..the above job description is not intended to be a comprehensive list of all duties involved and consequently, the post holder may be required to perform other duties as appropriate to the post which may be assigned to him/her from time to time and contribute to the development of the post while in office.”
14. The purpose of the post was also described by the job specification in the following terms:
“The Area Director of Mental Health Nursing will be Head of Nursing and the budget holder for nursing and associated services within the Mental Health Services.”
The judgment of the High Court
15. In his judgment O’Connor J. noted that counsel for the plaintiff had urged the Court to follow the views which had been expressed by Kelly J. in Rafferty v. Bus Éireann [1997] 2 IR 424, 442 where he said that “at common law an employee is not required to do a fundamentally different job from that contracted for”. But O’Connor J. did not accept that this is what had occurred in the present case:
“The Court has already mentioned that the re-assignment of the plaintiff did not constitute a fundamentally different job. By way of explanation for that finding, the Court observes that the plaintiff was temporarily moved to a position of clinical lead in the programme management office which is the office that is driving reform of mental health services in this country. As counsel for the defendant mentioned, the plaintiff was not assigned to administering the catering in a hospital or to carrying out some duties that were unrelated to the plaintiff’s qualifications, experience or status. In fact, none of the witnesses expressed a view that the temporary re-assignment was in any way inferior and Mr. Gloster expressed the belief that it offered some degree of prestige.
There is no need to give an excursus of what is or is not a condition of service as the effect of clauses 4 and 6 in particular of the plaintiff’s contract obliges the plaintiff to work “in any service area”. Furthermore she is required to “undertake duties appropriate to [her] position”. Clause 1 of the contract refers to a title which could be changed in any re-organisation if she was promoted or moved as indeed the plaintiff acknowledged could be the case and will probably be the case with a reorganisation due next year.”
16. O’Connor J. went on to state that he could not construe the terms of the contract “such that the plaintiff has a contractual right to preserve some right to remain as Area Director of Nursing until she otherwise agrees”. He continued thus:
“The reference to revising terms and conditions in clause 25 of her contract in accordance with trade unions representing her grade and “the HSE Western Area” copper-fastens the Court’s view that the plaintiff had a contractual right to a grade which could only be altered by agreement. Neither the plaintiff nor a union representing her grade could veto a temporary re-assignment as a result of the written contract between the parties.”
17. O’Connor J. further stressed that “the plaintiff has not been accused of wrongdoing and is not the subject of a disciplinary process” and nor had she established any “loss of reputation or status due to the re-assignment decision”. O’Connor J. finally rejected the plaintiff’s argument that the re-assignment was in breach of her conditions of employment:
“In summary, despite the rigorous cross examination of both Mr. Gloster and Ms. O’Connor, no bad faith, conspiracy or failure to recognise the rights of the plaintiff has been established. The particular union officer who threatened the plaintiff’s position and prospects has been told in no uncertain terms by the defendant that the defendant will not tolerate any such activity. Moreover, the Court accepts that the appeasement of that union or its members did not motivate Mr. Gloster’s decision of 1st July 2015. The decision communicated to the plaintiff on 1st July 2015, was not made with a view to investigating the plaintiff’s conduct or to starting disciplinary proceedings against the plaintiff personally. The decisions to initiate a national review and screening of the anonymous complaints were made by the defendant, and it was considered prudent to reassign the plaintiff while those processes were ongoing. There was and is no obligation on Mr. Gloster to justify his decision other than in the way that he did.”
18. In essence, therefore, O’Connor J. appears to have proceeded on the basis that the HSE had at least an implied entitlement to re-assign the plaintiff in circumstances where there were serious concerns about the functioning of the service and that such decision could only be challenged where something akin to bad faith had been established.
19. Against that background I now turn to the legal issues which now arise.
Whether there was any legal basis for the re-assignment of the plaintiff?
20. At the core of the plaintiff’s case is her contention that the re-assignment amounted to a clear breach of her contract of employment, irrespective of whether the re-assignment was regarded as permanent or temporary. The HSE argued that there was an express power to re-assign the plaintiff having regard to the provisions of clauses 4, 6 and 25 of the contact. It was alternatively claimed that there was an implied power to effect such a re-assignment.
21. Contrary to the views expressed by O’Connor J. on this issue of construction, I find myself obliged to hold that when this particular contract of employment is viewed in conjunction with the job specification (in the manner required by clause 6 of the contract document itself), there is simply no basis by which the plaintiff could lawfully have been re-assigned from her position. I reach this conclusion for the following reasons.
22. It is clear, first, that the plaintiff was appointed to the particular post of Area Director of Nursing in the Galway and Roscommon Mental Health Service. It is also clear from the job description that this was a post with clinical as well as managerial responsibility. The post also included being “Head of Nursing” for the mental health services in the area.
23. Second, clause 4 of the contract envisages that the plaintiff would be employed in the Galway and Roscommon Mental Health Services. It is true that this clause also expressly required the plaintiff “to work in any service area within the vicinity as the need arises”, but when viewed in its proper context all that this provision really means is that the plaintiff could be required to work in adjoining service areas in a similar capacity. In other words, while the geographical location of her post might be changed, this did not enable the HSE to change the nature of the post.
24. Third, this conclusion is re-inforced by a consideration of clause 6 which stipulates that the plaintiff would undertake the duties set out in the job specification. This further specifies that the plaintiff might be assigned further duties “appropriate to your position”, including “deputising as appropriate”. But clause 6 did not entitle the HSE to re-assign the plaintiff from her existing post to a quite different position.
25. It is accordingly clear that this was a very particular contractual position which entailed a mix of clinical and managerial responsibilities in the Galway and Roscommon Mental Health Service area. While the plaintiff could be assigned further duties (including performing duties outside of that area as occasion might require), these additional duties were required to be “appropriate” to her position. It followed that any additional responsibilities which the plaintiff might have to perform would have to be consistent with her position as Area Director of Nursing.
26. It followed, therefore, that in these circumstances, save for the provisions of clause 25, the plaintiff’s contract of employment did not permit her to be re-assigned from her existing contractual position with clinical and management responsibility in a designated service area to the Programme Management Office of the National Mental Health Service of the HSE, even if this did not entail any loss of remuneration or status and prestige. She was, in effect, changed from a clinical and operational role to a non-operational role, so that in substance the nature of her job specification had been changed in a material fashion. In these circumstances, it is hard to see how the plaintiff could not properly invoke the test articulated by Kelly J. in Rafferty inasmuch she was now required to perform a fundamentally different job from that contracted for.
27. In expressing this conclusion I have not overlooked Mr. Ward S.C.’s forceful argument to the effect that the contract of employment contained an implied term permitting the HSE to re-assign the plaintiff to other non-operation and non-clinical duties where the exigencies of the situation – such as the nature of the complaints and the general crisis in the provision of mental health services in Roscommon – so required. The most straightforward answer to this contention is that contained in Sweeney v. Duggan [1997] 2 I.L.R.M. 211, 217, a case where the Supreme Court outlined the tests for the importation of implied terms into a contract. Delivering the judgment of the Court, Murphy J. emphasised the requirement of necessity before a Court would imply a term in a contract:
“Whether a term is implied pursuant to the presumed intention of the parties or as a legal incident of a definable category of contract it must be not merely reasonable but also necessary. Clearly it cannot be implied if it is inconsistent with the express wording of the contract and furthermore it may be difficult to infer a term where it cannot be formulated with reasonable precision.”
28. Applying that principle in the present case, it is sufficient to state that an implied term of the kind now claimed by the HSE would be inconsistent with the express wording of the contract of employment. It would be tantamount to saying that even though the post entailed operational and clinical responsibility, combined with a guarantee that any further assigned responsibilities would be “appropriate” to that position, the HSE was nonetheless free by reason of an implied term to act in a manner which contradicted these contractual commitments and thereby assign the plaintiff to non-operational duties. There is, accordingly, no basis for the contention that there was an implied term of the kind relied on by the HSE.
29. It follows, therefore, that the assignment of the plaintiff to these non-operational duties amounted to a plain breach of her contract of employment. I would further reject the argument that the HSE was nonetheless free to take this course of action by reason of some supposed implied term.
Clause 25 of the Contract of Employment
30. Clause 25 of the contract of employment provides that the plaintiff’s terms and conditions “may be revised in accordance with agreements reached between the union representing your grade and the HSE Western Area”. For my part, however, I do not think that this clause is any direct relevance to the present case because there was no suggestion that there had in fact been an agreement between the union and the HSE pertinent to the present case such as might have triggered a revision of these terms and conditions.
31. It follows, therefore, that clause 25 could not be invoked to justify the re-assignment of the plaintiff from a position with clinical and operational responsibilities to a posting with no such duties.
Section 22 of the Health Act 2004
32. The HSE also seeks to rely on s. 22 of the Health Act 2004 (“the 2004 Act”), which it is contended provides an express statutory power to determine the duties of employees. The defendant also seeks to rely on an implied statutory power to manage its affairs in an appropriate manner.
33. Section 22(1) of the 2004 Act provides:
“The Executive may, subject to subsections (2) to (5), appoint persons to be its employees and may determine their duties.”
34. Section 22(4) provides:
“The Executive shall, with the approval of the Minister given with the consent of the Minister for Finance, determine:
(a) the terms and conditions of employment (including terms and conditions relating to remuneration and allowances) of employees appointed under this section, and
(b) the grades of the employees of the Executive and the numbers of employees in each grade.”
35. I cannot think that these statutory provisions are of any assistance to the respondent. They are simply standard provisions which enable the HSE to appoint persons to be employees and to determine their duties. So far as the plaintiff is concerned, the HSE has, in fact, appointed her to this post and has determined her duties in her written contract of employment which also identifies in clause 25 how the terms and conditions of that contract may be revised. The present proceedings are simply the means whereby the plaintiff seeks to give effect to these agreed conditions of employment. It would, of course, have been open to the HSE to have stipulated different terms and conditions in that contract of employment prior to the appointment of Ms. Earley to her position in November 2012.
36. Nor can I agree that the HSE enjoys an implied power of the kind claimed. The Supreme Court has made it clear that the courts will imply such a power where this is “incidental or consequential” in the context of the statutory provision at issue: see, e.g., Keane v. An Bord Pleanála [1997] 1 I.R. 184; McCarron v. Kearney [2010] IESC 28, [2010] 3 IR 302. But a power to re-assign employees in this fashion could not be regarded as “incidental” or “consequential” in this sense. If the HSE’s argument were correct, it would mean that it could depart almost at will from the terms of any contract of employment, so that, for example, a clinician might be assigned to purely non-clinical duties remote from her field of expertise or a nurse might find herself assigned to purely administrative duties.
37. The existence of such a power would, moreover, be inconsistent with the structure of s. 22 of the 2004 Act itself. It would mean, in effect, that the HSE’s express power found in s.22(1) to appoint employees and to determine their duties in the context of a contract of employment could be overridden by an implied power which enabled the HSE unilaterally to vary these duties, perhaps in far-reaching fashion. If the Oireachtas had ever intended that the HSE should enjoy such a power, one would have expected this to have been stated in clear and express terms and that it was not one which arose simply by implication.
Conclusions
38. It follows, therefore, that, for the reasons stated, I must conclude that the trial judge fell into error in concluding that the HSE had not breached the plaintiff’s contract of employment by re-assigning her from the operational and clinical duties specified in that contract (and which are also specified in the accompanying job description for that post) to non-operational duties. This conclusion is unaffected by the fact that the plaintiff’s remuneration was unaffected by this change or that the re-assignment was expressed to be a temporary one or even that it was expressed to be on a without prejudice basis.
39. I would accordingly allow the plaintiff’s appeal and grant a declaration to the effect that the re-assignment of the plaintiff in July 2015 constituted a breach of her contract of employment. In the light of this finding and the granting of such relief, I would invite the parties to make such further submissions on the question of whether the grant of any further relief by this Court is necessary or appropriate.